I. HOW AND WHEN TO BE PLEADED, VERIFICATION AND JUDGMENT. III. MISNOMER. IV. DEMURRER AND WAIVER. I. How and when to be Pleaded-Verification and Judgment. 1. It is a good plea that the sheriff who executes a process is the plaintiff in interest. Mitchel v. Allen, 2 S. & P. 247. Several pleas may be pleaded to the same action under the statute. 2. Ibid. 3. A plea commencing in abatement and concluding in bar, is defective and bad on demurrer. Rogers & Son v. Smiley & Griffin, 2. P 249. 4. When issue is taken on a defective plea, the defect will not be enquired into. State v. Ligon, 7. P 167. 3. P 43. 5. Demurrer to plea admits the plea to be filed, and can only contest its legal sufficiency—and semble does not reach the endorsement required by 12th rule of practice. Though an objection it seems might be well taken to the plea if it affirmatively appears that it was not filed within the time prescribed by statute. Powers v. Bryant, admr. 7. P 9. 6. Plea that the action was brought before debt due-sufficiently verified by the endorsement of writ. D. & J. Collier v. Crawford, A. R. 100. 7. When plea was filed at the same Term with Declaration, sufficiently verified by affidavit subsequent to the Term, being filed before default claimed, it is in time. Ellis v. Hickman, A. R. 394. 8. Plea alledging that the obligation sued on was given in consideration of services not yet performed, but which shows that they were in the progress of performance,—if not verified is Demurrable. 9. Coulter v. Bell, 2. S & P. 358. Whenever the fact of the plea does not appear on the Record, such plea must be verified by affidavit. Ibid. 10. Sworn to and subscribed in open Court," signed to a plea by a party pleading and attested by the Clerk, is sufficiently verified without a more formal affidavit; nor is it necessary it should be signed by counsel. -the State v. Middleton, 5. P 484. Powers v. Bryant, admr. 7. P 9. 11. Demurrer to a plea sustained and Defendant answers over— judgment on the plea will not be revised in the appellate court. Parks & Burke v. Greening, A. R. 178. 12. Plea struck out as frivolous-Judgment should be to answer over immediately, and not final. Gibson v. Laughlin, A. R. 182. II. To the person of Plaintiff and Defendant. 13. A suit will not abate by the death of Plaintiff, if administrator makes himself a party-though it be without an order of the court. Jones v. Acre, admr. A. R. 6. Kennedy v. Pickering, A. R. 137. 14. T. & W. declare as partners trading under the name and firm of T. W. & Co. If there are more than two partners, it can be shown by plea. Garner v. Tiffney, Wyman & Co. A. R. 167. 15. In assumpsit against common carriers, the rule of law requires all the parties to be joined;-but the non-joinder can only be taken advantage of by plea. Jones, et. al. v. Pitcher 3. S & P 135. III. Misnomer. 16. A substantial misnomer of either the Christian or Surname is good matter of plea. Lynes v. State, 5. P 236. 17. That the initial only of the first name of a Defendant is set out in the Declaration, and not his name in full, may be made available by plea setting out his true name. Cantly v. Moody, 7. P 443. IV. Demurrer and Waiver. "not 18. Plea and demurrer thereto-and afterwards issue joined on guilty"-the demurrer is waived, and the same matter cannot be insisted on in arrest of judgment. Davis v. Dickson, 2. S 370. 19. Pleading to the merits after plea in abatement overruled, waives the right to revise the decision on it. Wade v. Kelly & Hutchinson, 2. S 443. See Attachment. Criminal Law. Errors and Appeals. Freeholder. Jury. Parties to Actions. Pleas and Pleadings. Practice. Supreme Court. ADMIRALTY-PROCEEDINGS IN NATUre of. 1. The statutes 1824 & 1836, giving a lien by proceedings in the nature of Admiralty process against vessels, steamboats, &c. are to be construed in pari materia, both containing provisions designed to be operative, and to constitute one system. Richardson et al. v. Cleveland & Huggins, 5. P. 251. 2. The jurisdiction conferred by these statutes upon the county and circuit courts is not unconstitutional, nor does it conflict with the admiralty and maritime jurisdiction. Ibid. 3. When the libel states that the libellants were merchants; that they furnished stores, &c. to a certain named steam-boat; that the amount claimed was justly due; that the boat was duly registered and licensed, and that the articles were furnished at the special request of the owners and master of said boat at divers times, from the 7th January, 1835, to 20th April, 1836,— Held, 1. That the description of the personal character of the libellants and the vessel, was sufficiently certain to bring it within the terms of the statute 1824. II. That the allegation, that the "stores" were furnished to the "steam boat" at the special request of the "owners and master,' was equivalent to the allegation, "for the use of the boat." III. That the sufficiency of the averment as to the time when the stores were furnished, could be corrected by reference to the account filed and annexed to the libel. Ibid. 4. The answer of respondent may be required to be under oath; but is not necessary unless the nature of the libel require it: And cases of this character should go to the jury and be tried independent of the oaths of the parties. Ibid. 5. The bond required to be taken under the statutes when executed, operates as a discharge of the specific lien acquired by seizure. Ibid. 6. When stipulations have been entered into, a condemnation on final judgment cannot be awarded. Ibid. ACTIONS IN GENERAL. I. ELECTION OF ACTIONS. II. WHEN ACTION ACCRUES. I. Election of Actions. 1. Where proceedings to try the right of property are pending, plaintiff files a bill to subject the property as trust estate to the same debt, he cannot be forced to elect which remedy he will pursue, until he has had the benefit of defendant's answer. Houston & Gillespie v. Sadler, 4 S. & P. 130. |